An offense requiring lewd intent as an essential element is often held to be a crime involving moral turpitude.[1]  However, the existence of this intent is not sufficient, standing alone, to require the offense to be held to be a CMT.[2] At least one offense, statutory rape, has been found to be crime of moral turpitude, even though the statute of conviction required no proof of intent.[3]  There are arguments, however, that this is improper.  See also § 8.8, supra.     

 

            Failure to Register as a Sex Offender. 

 

Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (Nevada conviction of failure to register as a sex offender, in violation of Nev. Rev. Stat. § 179D.550, does not constitute a crime involving moral turpitude within the meaning of INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I), because the offense of conviction is a strict liability offense without any intent requirement), following Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007); Mei v. Ashcroft, 393 F.3d 737, 740 (7th Cir. 2004) (“crimes deemed not to involve moral turpitude ... are either very minor crimes that are deliberate or graver crimes committed without a bad intent, most clearly strict-liability crimes”);

Matter of re Tobar-Lobo, 24 I. & N. Dec. 143 (BIA Apr. 23, 2007) (California conviction of willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of Penal Code § 290(g)(1), is a crime involving moral turpitude).

 

[192] See, e.g., Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction of disorderly conduct in violation of California Penal Code § 647(a), soliciting of a person or persons to engage in, and the engaging in lewd and dissolute conduct in a public place, referring to overt and public homosexual activity, is a crime involving moral turpitude), distinguishing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961), cert. den., 368 U.S. 918 (1961) (New York conviction under disorderly conduct statute prohibiting loitering about public place soliciting men for purpose of committing crime against nature or other lewdness held to be crime of moral turpitude); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960); Lane ex rel. Cronin v. Tillinghast, 38 F.2d 231 (1st Cir. 1930) (criminal lewdness as defined by the statute of Massachusetts has been found to connote moral turpitude); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 295 F.2d 184, 111 U.S.App.D.C. 197 (D.C.Cir. 1961), cert. den., 368 U.S. 926 (1961) (conviction under New York Penal Law § 722, of frequenting or loitering about a public place and soliciting men for purpose of committing crime against nature or other lewdness, was a conviction for crime involving moral turpitude); Ganduxe y Marino v. Murff, 183 F.Supp. 565, 567 (D.N.Y. 1959), aff’d, 278 F.2d 330 (2d Cir. 1960), cert. den., 364 U.S. 824 (1960) (New York conviction for loitering for purpose of inducing men to commit acts against nature or other lewdness held a crime involving moral turpitude), citing United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Matter of Lambert, 11 I. & N. Dec. 340 (BIA 1965) (conviction for letting or renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation or prostitution in violation of section 26-42 of the City of Tampa Code is conviction of a crime involving moral turpitude); Matter of C, 3 I. & N. Dec. 790 (BIA 1949) (conviction of open lewdness in violation of New Jersey Revised Statutes 2: 140-1 (1942) involves moral turpitude).

[193] E.g., Matter of FR, 6 I. & N. Dec. 813 (BIA 1955) (conviction of a violation of New York Penal Law § 722(8), disorderly conduct by frequenting or loitering about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, not considered crime of moral turpitude), citing Matter of GR, 5 I. & N. Dec. 18 (BIA 1953).  But see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (June 26, 2003) (Texas conviction of “deviate sexual conduct” [oral or anal sex or penetration with an object] between members of the same sex, in violation of Texas Code Ann. § 21.06(a), held in violation of the Due Process Clause of the Fourteenth Amendment, where both partners were adults at the time of the offense which was consensual and occurred in private).

[194] See, e.g., Rivo v. INS, 262 F.Supp.2d 6 (E.D.N.Y. May 9, 2003); Castle v. INS, 541 F.2d 1064 (4th Cir. Sept. 23, 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972).  But see Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. Oct. 9, 2007) (California conviction of statutory rape, in violation of California Penal Code § 261.5(d), where the victim is under 16 years of age and the actor is over 21, is not a crime involving moral turpitude, since (1) it includes consensual sex [at minimum] between a high-school junior and a college sophomore, and is not inherently base, vile, or depraved; court also noted that (2) the statute proscribes at least some malum prohibitum conduct, since the same act would not be illegal at all if the two were married at the time; (3) the same conduct is not illegal in other states; (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the offense does not require any element of intent be proven).

Third Circuit

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER
Totimeh v. Attorney General, 666 F.3d 109 (3d Cir. Jan. 12, 2012) (Minnesota conviction of failure to register as a sex offender, in violation of Minn. Stat. 243.166.5, defined the offense as knowingly violat[ing] any of [the statutes] provisions or intentionally provid[ing] false information, is not a crime of moral turpitude, since it is a regulatory offense designed to assist law enforcement, and does not regulate a crime that of itself is inherently vile or intentionally malicious.); following Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (Colorado conviction of failure to register as a sex offender, is not a CIMT).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " FEDERAL CONVICTION OF FAILURE TO REGISTER AS A SEX OFFENDER " ELEMENTS " NO REQUIREMENT GOVERNMENT PROVE THAT THE DEFENDANT KNEW OF REGISTRATION REQUIREMENT
United States v. Crowder, 656 F.3d 870 (9th Cir. Aug. 30, 2011) (affirming federal conviction for failing to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250(a), where the government is not required to prove that a defendant knew that SORNA imposed a registration requirement in order to sustain a conviction under the statute). Note: This strengthens the argument that a federal conviction under 18 U.S.C 2250(a), is not a crime involving moral turpitude.